Suspended, Off Sick, Thinking of resigning - advise please

[jamesmac]

Hi, I need some advise mainly for reference purposes if possible please.

I was suspended last week under suspicion of gross misconduct. Too be honest I did not do what they are claiming but I can see how it looks and it looks bad for me. I am not too bothered as I want out of the industry I am in although I have worked in it for 10 years and for this specific company for 2 1/2 years. I was then signed off work by my doctor before the investigatory meeting took place so could not attend on grounds of stress/depression which are not related to the meeting itself but is related to the industry I'm in. What I want to know is if I resign while I'm signed off and my notice period expires before I am able to attend any meeting what will this mean for any reference I may need. Will it still state resigned whilst pending investigation? or are they more liable to not mention that as they would not want to be opened up to me suing them for defamation of character?

 

Thanks in advance. I would rather not go into specifics (although I guess i could expand a little if required) as this is a fairly unique set of details which may be recognisable to anyone who reads this forum.

[SarEl]

Will it still state resigned whilst pending investigation? Very probably, yes. or are they more liable to not mention that as they would not want to be opened up to me suing them for defamation of character? It's the truth you are suspended pending an invetsigation for gross misconduct - it is therefore not defamation to tell the truth!

 

I would not recommend depending on an employer not mentioning this - even on basic references, most potential employers will specifically ask about reasons for leaving and/or investigations/disciplinaries. Some employers must ask - or tell - by law or regulation.

 

I may be being somewhat perverse, but if you did not do something, I cannot see how having done nothing could "look bad". Things that "look bad" are, by their nature, actual "things" - "nothing" doesn't look like anything because it doesn't exist! And having just utterly confused myself with that utterly esoteric argument - it's simple. If you did nothing, then you defend your position that you did nothing, so that you can leave with a clean record. If you did something, then depending on what that something is, you need to decide what your next step is.

[desperate31]

I would suggest you see it through to the end especially if you are still being paid. Spend the time whilst you are suspended in trying to sort yourself out - be it by getting help for your stress/depression or by preparing yourself for a new position. If you didn't do what they said then it should show up in any investigation. You should receive the evidence of what the investigation has unearthed and if you feel there is a question that they haven't asked of certain people which you believe would help your case then request it gets asked.

I know what you are going through as I have been there myself. Keep your chin up and stay strong as hard as it may be. Don't resign just yet as it could look bad for your next job and besides the suspension may be lifted and the charges dropped. Then you can walk away with your head held high stating it was time for a career change.

[Guest Old_andrew2018]

Are you a member of a trades union

[Roblynmouth]

Hi

If you are still off sick and have not left the job, sit tidy you are getting paid. Play along until the very end and then resign

 

Regards refs Employers are obliged to provide honest references and can be sued for liable if they dont. As a result most employers tend to stick to basic information anyway. Fred worked for x years he did this he did that

However they can also add the number of days you were off sick to a reference if they want.

[Tingy]

Hi, I need some advise mainly for reference purposes if possible please.

I was suspended last week under suspicion of gross misconduct. Too be honest I did not do what they are claiming but I can see how it looks and it looks bad for me. I am not too bothered as I want out of the industry I am in although I have worked in it for 10 years and for this specific company for 2 1/2 years. I was then signed off work by my doctor before the investigatory meeting took place so could not attend on grounds of stress/depression which are not related to the meeting itself but is related to the industry I'm in. What I want to know is if I resign while I'm signed off and my notice period expires before I am able to attend any meeting what will this mean for any reference I may need. Will it still state resigned whilst pending investigation? or are they more liable to not mention that as they would not want to be opened up to me suing them for defamation of character?

 

Thanks in advance. I would rather not go into specifics (although I guess i could expand a little if required) as this is a fairly unique set of details which may be recognisable to anyone who reads this forum.

 

James,

 

I went through a very similar issue myself, as a result of which I built up quite a detailed knowledge of employment law and am now called back by the HR department to advise on awkward cases.

 

Mine didn't involve any allegation of misconduct, but if you did not do it, I honestly think you ought to fight to clear your name. As you say, it's difficult without knowing specifics, but the advice given so far about sitting tight for as long as you're being paid is good. Also make your employers aware of the MALG guidelines which probably kick into force for the reason you're off sick.

 

If you want to share any details with me, feel free to pm me - I'll send you one in a minute. I will know very quickly whether it is something I can or can't help you with, but may well be able to point you in a particular direction if it isn't something within my spectrum of expertise.

 

pm heading your way.

[honeybee13]

Hello Tingy. We haven't seen jamesmac since late November after his one post on the forum. Under the new site rules, he will have to have 5 posts before he can PM you. It's a kind offer though.

 

My best, HB

[Tingy]

Hello Tingy. We haven't seen jamesmac since late November after his one post on the forum. Under the new site rules, he will have to have 5 posts before he can PM you. It's a kind offer though.

 

My best, HB

 

Thanks HB!

 

I must remember to look at dates of posts. I keep doing this! Put these words into a sentence......

 

Tingy wazzock a is!

 

lol Thanks anyway.

[honeybee13]

LOL. HB

[citizenB]

Please note the following from the site rules

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?9-Forum-rules.-Please-read-these-before-posting

 

d) Offering to advise members by PM or email without good reason - If it is felt that a subject is "sensitive" and would be better discussed off-forum, we ask that members contact a member of the site team BEFORE asking for contact details. This rule is in place to protect our members from claims touts, and also to ensure that any advice given is open to debate, qualification, and where necessary, correction.

 

[Tingy]

Please note the following from the site rules

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?9-Forum-rules.-Please-read-these-before-posting

 

Hi and thank you for that. I had a feeling I'd get a message like this when I made the post as I'm well aware of the site rule. I tried (but failed) to word my post carefully. At no point did I say I would offer advice via pm, I just said if there were sensitive issues that he did not want to disclose in public (as he mentioned in his post) he could send those in pm and I'd know whether or not I'd be able to help.

 

I do a lot of work with employment law (in a specialised area), but usually very serious resulting in people either keeping or losing their jobs and am invited to do so by three different councils round here, one where I used to live in England and two in Wales who've heard of me since moving here and use my services. My intention with this was to see whether it fell within my area and if it did, take it from there, if it didn't tell him so, so there was no point in contacting the site team as it was not at that stage.

 

Hope this all makes sense, and thank you for the reminder anyway - it is better to be safe than sorry!

 

Tingy

[Roblynmouth]

Hi

Regards the bit about adding the number of days off sick in a reference i think the recent changes in the law would preclude an ex-employer from mentioning sick records to a new employer

[Sidewinder]

Hi

Regards the bit about adding the number of days off sick in a reference i think the recent changes in the law would preclude an ex-employer from mentioning sick records to a new employer

 

No it wouldn't. The Equality Act only clarifies and enhances existing legislation regarding recruitment and selection as it relates to Disability. Information regarding previous absence is still relevant to the recruitment process in order to assist the new employer to facilitate reasonable workplace adjustments in the case of employing a disabled person, or in making an assessment of suitability in a non-disabled prospective employee.

[Tingy]

100% correct Sidewinder.

[Roblynmouth]

Hi

 

I think this one for case law to come?

The way i read it, the legislation is designed to stop employers using disability to exclude a new employee, hence the medical questionnaire after they have offered you a job. Don't forget the DDA95 prescribes that employers are required to offer disability facilitates regardless. i.e. that the workplace is disabled friendly, it's not for the disabled person to have to request any reasonable adjustments?

Moreover i think that this legislation is a follow on to X -V- EEC [2005 i think] in that the EEC said that because an employer had a medical assessment for all employees, that the employer could not rely on the Courts to make a determination about whether the employee is disabled or not. There was an assumption that the employer would decide for themselves the extent if any, of the disability of the employee [i.e. do they meet S1 of the DDA95?]

It therefore could be argued i would suggest that a reference that alluded to a medical issue [which may or may not fall under the terms of S1 DDA95] would fall foul of the new legislation leaving the ex-employer as well as the new employer open to prosecution. In effect a reference which alluded to a period of time could be construed as providing the new employer prior knowledge of what they might consider a detrimental employee? The aim of the legislation is to ensure that those people who are disabled under s1 DDA95 are not discriminated against in their application and successful offer of employment.

Thats my slant on this

What do you think?

[Tingy]

I agree, but I don't think having days off sick with a cold or flu or hangover or whatever could ever class you as disabled. Given the clear intent of the new law change, I don't think it unresaonable to ask for an able bodied persons' work attendance record. Let's face it, if you're always off sick, your reference will knacker you anyway!

[Roblynmouth]

Hi Tingy

 

Thats the point as an ex-employer you are undermining the legislation by implying that Joe/Fred/Sue are off sick a lot. You are providing the new employer with the opportunity to simply disregard the employee on a safety first bases. The problem the new employer will have, if he scatter guns all employees with a reference that said he was of sick a lot he is liable to not employ a disabled person. Not employing a didabled person is why this legailation was enacted and the new employer is in dead stuk, 'bang to rights me lord'

It is unlikely that an employer will want to run the risk of getting caught out?

However what they will do undoubtedly is word the application form in a way that makes it difficult to avoid disclosing disability and no i can't think of one at the moment. Like i said case law for this one

[Tingy]

I am all for employing disabled people. Indeed some places I go to because that is what they do (a fantastic cafe on Anglesey where all the people who serve you are disabled in some way - brilliant place!).

 

Any disabled people I know (not that many) are in work and work hard and well at their jobs as far as I know. At the other end of the spectrum you do have people who swing the lead and "throw a sicky" at the drop of a hat. In my opinion, these people should have this fact revealed in their reference. As someone who writes a lot of references for people, whatever the law, certainly within my area there are certain phrases that are used that show basically whether or not their current employer thinks they're fit for the job. I always try to write honest references that will enhance people's prospects of getting the job, but to be honest, sometimes it is impossible and in those cases I always advise they ask someone else, but sometimes they haven't even asked if they can use me, in which case that is what I put on the reference.

 

Legislate all you like, but people will find a way round it.

 

I'm not saying this is right, but I think it is possibly true!

[honeybee13]

I don't mean to be a killjoy guys, but we haven't seen the OP for over a month.

 

My best, HB

[Sidewinder]

Yeah, Party Pooper!

 

In all seriousness though, since Roblynmouth has sought to reopen a month old thread with an argument which might be misleading to those who later try to apply this thread to their own situation, it is important that further comment is available in order to give a balanced view.

 

Whilst the opinions relating to the Equality Act and sickness absence recorded on a reference might later be tested in law, the fact is that presently the EA adds little that is different to previous legislation, and an employer may seek, and reasonably use sickness absence as a factor in assessing suitability to a position, providing that this does detrimentally affect the chances of a candidate with a disability. Employers should clearly differentiate absences which result from an employee's 'disability' and those for more general absences and take care when relating these to any prospective employer.

 

Where I do agree is that there may well be challenges in future which clarify what should and should not be related to a prospective employer.

[Roblynmouth]

Hi

 

Whilst i may have inadvertently reopened an old thread, i note that the first post is dated 21st November some two months after the introduction of the EA! and at least two threads have put over as 'fact' that employers can add previous sick records to references. whereas the best legal advise i have seen is beware of adding sick records to references given the implications of the act?

The law is the law is the law until the law tells you otherwise, as Denning used to say. I for one would challenge anybody supplying medical records as part of a reference. Then let the law pick the bones out of it

[Sidewinder]

I believe that the point that you originally made was that the Equality Act would preclude an employer from either requesting or providing information regarding the levels of sickness absence in a previous employment. The Act makes no such provision, but serves to remind employers that they should not give a misleading impression of a candidate's reliability or otherwise where absences have been due to a protected characteristic. Therefore, employers should be especially careful that absences deemed caused by the protected characteristic should be recorded carefully. Employers should avoid any assessment of a candidate's health prior to any job offer being made, but may still make an offer conditional on receiving satisfactory references, and any apparently negative information should then be discussed in more detail with the prospective employee and mindful of the provisions of the DDA and EA. It is therefore 'fact' that an employer can add details of sickness absence to a reference, and the best legal advice seems to be to take extra care, rather than to ignore this information altogether. The Act most certainly does not serve to allow employees with a habitual sticky mattress syndrome or a history of taking a couple of sickies a month to be employed without question - it does though place a greater responsibility on employers to ask more questions about absence levels before rejecting a candidate.

 

You are absolutely right however that any employer should be open to a challenge - that is only right, and of course no medical records may be requested without the permission of the prospective employee, although details of overall levels of sickness may still be sought regardless.

 

Nothing wrong with a debate, and there will doubtless be cases in future which tidy up the law.